Petitioner, a child actor, and his mother lived in New York City during 1963, where petitioner appeared in two plays. During 1963 he attended private schools which provided him a regular grammar school curriculum but which were better suited for working children, such as the petitioner, than were the public schools. Held:

1. Petitioner's expenses for food and lodging in New York City in 1963 were not deductible traveling expenses, because he was not ‘ away from home.’

3. The food and lodging expenses of petitioner's mother in New York City in 1963 were not deductible by him, because they were not expenses of a guardian incurred in connection with the production of the petitioner's income.

SIMPSON, Judge:

The respondent determined a deficiency of $501.40 in the petitioner's income tax for the taxable year 1963. The petitioner contests part of his deficiency and in addition now claims an overpayment of $381.00 for that year. The issues for decision are: (1) Whether the petitioner was ‘ away from home’ when he lived in New York City in 1963, entitling him to deduct his expenditures for meals and lodging there as traveling expenses under section 162 or section 212 of the Internal Revenue Code of 1954; [1] (2) whether, because the petitioner attended private grammar schools which offered professional children certain benefits, the tuition paid to those schools is a deductible business expense; and (3) whether food and lodging expenses incurred by the petitioner's mother in New York City are deductible by the petitioner as business or guardian expenses.

FINDINGS OF FACT

Some of the facts are stipulated, and those facts are so found.

The petitioner is the minor child of Paul and Dolores Kroll. He filed his income tax return for the calendar year 1963 with the district director of internal revenue, Manhattan, New York.

In January 1963, the petitioner, then 8 years old, came to New York City from Meriden, Conn., with his mother and brother to audition

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for a part in the David Merrick musical production, ‘ Oliver.’ It was about to open in New York City after a successful tour of the United States and London. Until he came to New York, the petitioner had never engaged in a trade or business, and had lived with his father, mother, and brother in Meriden, 95 miles from New York City, in a house owned by his father. His father owned and operated ‘ The Friendly Barber Shop’ in Meriden, and throughout the entire period that petitioner was away from Meriden, and throughout the entire period that petitioner was away from Meriden his father continued to live in Meriden, maintain the house, and operate his business.

The petitioner's auditions were successful, and on January 5, 1963, he executed an Actors' Equity Standard Minimum Contract with David Merrick to appear in ‘ Oliver.‘ as a ‘ swing dancer/singer,‘ his opening performance to be January 14, 1963, ‘ or not later than fourteen (14) days thereafter.’ This contract had no expiration date but ran for an indefinite period, either party having the right to cancel on 2 weeks' notice. The petitioner appeared in ‘ Oliver.‘ in this role from January until June 1963. In June he left ‘ Oliver.’ to rehearse for the play ‘ Here's Love,‘ in which he appeared on the road from July to October 3, 1963, and in New York City from October 4 to November 21, 1963.[2] On November 22, 1963, the petitioner left ‘ Here's Love’ to take the title role in ‘ Oliver!,‘ and on November 26, 1963, he executed a contract with David Merrick covering his performance in that role. A simultaneously executed rider contained provisions setting the term of the contract at 15 months and providing that if the manager of the play did not consider the petitioner's height proper for the role, he could terminate the contract on 4 weeks' notice.

By a rider executed in February of 1965 the term of the contract was extended to July 3, 1965. The petitioner appeared as Oliver in New York City from November 1963 to November 21, 1964, and then went on the road with the play until his last performance on July 3, 1965. In July 1965, he returned to Meriden and was not engaged in any trade or business between that time and the time of the trial of this case.

When the petitioner, his mother, and his brother, who also took a part in ‘ Oliver.,‘ came to New York in January 1963, they occupied a hotel room for a short period of time. Near the end of January, they moved to an apartment with cooking facilities in the Hotel Bristol, where they lived until sometime in April. They had no lease on this apartment. They then moved to another apartment with cooking facilities in the Hotel Whitby and kept that apartment through the remainder of 1963. There was no lease on this apartment. The petitioner and his mother lived there through the end of 1963 except for

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the period from July to October when they were on the road with ‘ Here's Love.’ During this time the petitioner's brother, who performed in the chorus of ‘ Oliver.,‘ remained in New York and lived in the Whitby apartment with a guardian hired by his parents.

When the petitioner came to New York, he and his parents did not know whether he would like New York or like acting in plays, and it was their intention that he would leave the play and go back to Meriden to live if he was not happy in New York. The petitioner, his mother, and brother often went back to Meriden on weekends, leaving after the Saturday evening performance which usually ended around 11 p.m. At no time during 1963 or thereafter did the petitioner's mother consider her home to be any where but Meriden.

Prior to coming to New York, the petitioner attended a nontuition parochial school in Meriden, and after he returned to Meriden to live in July 1965, he went back to the nontuition school. While he was in New York, however, during 1963, he attended private schools which charged tuition. From January through June 1963, he attended the Professional Children's School in New York City. His fees for attending this school were $262.50. He attended classes there from 10 a.m. to 2:05 p.m. regularly. During the fall term of 1963, he attended the Mace School in New York city. He paid the Mace School $189 for that term. He pursued a normal grammar school curriculum at these schools, which satisfied the requirement of the New York Compulsory Education Law that he, as a child under 16 years of age, attend school. N.Y. Educ. Law sec. 3205. Although the petitioner received no special training in the performing arts, these schools offered him certain benefits which are not required by a nonworking child. Thus, because he acted in evening performances which did not end before 11:00 in the evening, he did not go to bed before midnight. It would have been difficult for him to get up in time to go to public school at 8:30 or 9 in the morning. The private schools began later in the morning- the Professional Children's School at 10 a.m. and the Mace School at 9:30 a.m.00 and at the Professional Children's School, a young child could come in even later if attendance at the beginning of the regular school day did not allow him to get the necessary sleep.

The petitioner had to be able to be out of school for days or weeks at a time, as when he was on the road with ‘ Here's Love.’ He also had to be able to leave classes during the day for matinees, rehearsals, and auditions; sometimes he had to leave on short notice for these appointments. The professional schools were prepared to get messages to children in class concerning these appointments, and to let children out of class in the middle of the day. Moreover, and of particular importance to the petitioner, the schools provided correspondence

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materials by use of which a student could make up missed classes. At the Professional Children's School, the petitioner was able to maintain a satisfactory school record, although he was absent for 27 whole days, 8 half days, and had one early excuse and three latenesses between January and June 1963. He also maintained a satisfactory record at the Mace School.

Some children in the acting profession did attend the public school or nonprofessional private schools in New York City, but found it more difficult to keep up with their schoolwork than did the petitioner, attending the professional schools. In the discretion of the principal of a particular public school, a child might be permitted to arrive late to school or to leave in the middle of the day if someone were there to pick them up, but...